The Story Behind the “Denied” Story

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Mary Faithfull, Executive Director

Three years ago, DRTx started noticing that in the last decade, the percentage of students with disabilities receiving special education services in Texas was declining steadily.

Our staff began digging deeper to find out why and eventually uncovered something buried deep within the Texas Education Agency (TEA) school performance manual. To receive a favorable rating, a school district was required to maintain 8.5 percent or less enrollment in special education.

Essentially, the cap meant that an estimated quarter of a million kids were kept out of special education services and not receiving the supports and protections that they need to succeed in school.

This cap has harmed Texas kids and their families. DRTx believes that the indicator was not only unethical, it also violated federal mandates that require schools to proactively identify all kids with a disability who require special education services.

When we uncovered the cap in 2014, DRTx tried several courses of action to eliminate it. In June 2014, we submitted formal public comments to TEA expressing grave concerns for the renewed adoption of the 8.5 percent cap. TEA ignored our concerns. In September 2014, our Board of Directors instructed us to prioritize cases to ensure students with disabilities were identified, and we took on several hundred cases to fight for students rights. We also formed a coalition of advocacy groups to get more organizations to speak up against the cap.

Despite these efforts and others, we struggled to garner the attention and action needed to eliminate the cap. But thanks to the Houston Chronicle, that changed.

Last September, reporter Brian Rosenthal released a series beginning with Part 1 entitled, “Denied: How Texas Quietly Keeps Tens of Thousands of Disabled Children Out of Special Education.” Based on a tip from one of our education attorneys, Rosenthal shared heartbreaking stories and startling statistics that finally brought the issue into the spotlight.

After the first article ran, DRTx received an outpouring of questions, comments and requests from parents, educators, advocacy groups, policy makers and other news reporters.

Since the initial news story, much has happened.

Our staff continued to work with the Houston Chronicle and other news outlets to provide more data and stories of families impacted by the cap. We attended Department of Education listening sessions across the state in support of hundreds of parents, students, and educators who shared demoralizing stories of children languishing without getting the school supports and services they desperately needed. We also educated parents and disability advocates through social media posts and Facebook live events on how to get involved or get help – and the response was overwhelming.

As all these things were happening, we waited for months for TEA to formulate a specific action plan to eliminate the cap, but no such plan came forward. So DRTx attorneys along with pro bono co-counsel Winston & Strawn sent a demand letter to TEA on January 30 on behalf of the Coalition of Texans with Disabilities and its members to call for an immediate and permanent end to the cap.

TEA eventually responded in writing to agree to our demand. But state lawmakers knew better than to stop the fight there. They recognized that TEA would need to be held to their commitment by passing legislation to ensure an end to the cap.

That’s why in the past few months, DRTx policy specialists, attorneys and advocates provided technical support at the request of several Texas legislators on both sides of the aisle who introduced bills to ban the cap and to provide relief for students who have suffered as a result.

I’m extremely pleased to report that on May 22, Governor Abbott signed SB 160 which officially ends the 8.5 percent cap once and for all!

Another important bill passed this session, SB 1153, requires schools to notify parents when their child has been referred for Response to Intervention (RTI) which was often used without parents knowledge to keep students from getting special education services. Notice of such a referral will ensure parents are made aware that a child may have a disability and need evaluation and additional services.

Unfortunately, another significant bill, HB 3437, did not pass this session. It would have required school districts that had the biggest declines in special education numbers over the past decade to notify parents of the issue, re-evaluate students, and provide services.

The good news is that in this past year, special education in Texas has received more attention than it has in several decades.

A child’s success in school impacts her whole future, and so DRTx will continue to work tirelessly to ensure that children with disabilities receive the services they need and are entitled to by law.